FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 20, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-14677

Non-Argument Calendar

________________________

D. C. Docket No. 07-00104-CR-T-30EAJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

FRANCISCO HERNANDEZ-PENA, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 20, 2008)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Francisco Hernandez-Pena appeals his 46-month sentence following his
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guilty plea to illegal reentry by an individual previously convicted of an aggravated

felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). On appeal, Hernandez-Pena

argues that his sentence is procedurally unreasonable because the district court

failed to consider any 18 U.S.C. § 3553(a) factors other than the advisory guideline

range itself. Hernandez-Pena further contends that consideration of the § 3553(a)

factors reveals that his 46-month sentence is substantively unreasonable.

We review the sentence imposed by the district court for reasonableness. 

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). Recently, the

Supreme Court clarified that courts of appeal are to review sentences for abuse of

discretion. Gall v. United States, 552 U.S. __, __, 128 S.Ct. 586, 597, 169 L.Ed.2d

445 (2007). We 

must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence-including an explanation for any

deviation from the Guidelines range.

Id. To that end, the district court “should set forth enough to satisfy the appellate

court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United States, 551

U.S. __, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). However, “nothing in
 United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 1

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Booker or elsewhere requires the district court to state on the record that it has 1

explicitly considered each of the § 3553(a) factors or to discuss each of the

§ 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

If the district court’s decision is procedurally reasonable, our analysis then

turns to the substantive reasonableness of the sentence. Gall, 552 U.S. at __, 128

S.Ct. at 597. Reasonableness review is deferential and “the party who challenges

the sentence bears the burden of establishing that the sentence is unreasonable in

the light of both [the] record and the factors in section 3553(a).” Talley, 431 F.3d

at 788. “In reviewing the ultimate sentence imposed by the district court for

reasonableness, we consider the final sentence, in its entirety, in light of the

§ 3553(a) factors” rather than reviewing each individual decision made during the

sentencing process. United States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006). 

Furthermore, “[t]he weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court[,]” and we “will not

substitute our judgment in weighing the relevant factors.” United States v.

Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), cert. dismissed, 127 S.Ct. 3040

(2007), abrogated on other grounds by, Kimbrough v. United States, 552 U.S. __,

128 S.Ct. 558, 169 L.Ed.2d 481 (2007). We have noted that “a district court’s
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unjustified reliance on any one Section 3553(a) factor may be a symptom of an

unreasonable sentence.” United States v. Pugh, 515 F.3d 1179, 1191 (11 Cir. th

2008). The § 3553(a) factors include:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need to reflect the seriousness

of the offense, to promote respect for the law, and to provide just

punishment for the offense; (3) the need for deterrence; (4) the need to

protect the public; (5) the need to provide the defendant with needed

educational or vocational training or medical care; (6) the kinds of

sentences available; (7) the Sentencing Guidelines range; (8) pertinent

policy statements of the Sentencing Commission; (9) the need to

avoid unwanted sentencing disparities; and (10) the need to provide

restitution to victims.

Talley, 431 F.3d at 786 (summarizing 18 U.S.C. § 3553(a)).

Although in Rita, 551 U.S. at __, 127 S.Ct. at 2462, the U.S. Supreme Court

held that courts of appeals may afford a presumption of reasonableness to

sentences within the properly calculated guidelines range, we have declined to

provide such a presumption. United States v. Campbell, 491 F.3d 1306, 1313-

1314 (11th Cir. 2007). While we do not apply such a presumption, “there is a

range of reasonable sentences from which the district court may choose[,]” and we

ordinarily expect a sentence within the guidelines range to be reasonable. Talley,

431 F.3d at 788. We have also held that comparing the sentence imposed against

the statutory maximum sentence is one indication of reasonableness. Valnor, 451

F.3d at 751-52.
 Appellant’s request for oral argument is denied. 2

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Upon review of the presentence investigation report and sentencing

transcript, and upon consideration of the briefs of the parties, we discern no

reversible error. We conclude that Hernandez-Pena’s sentence is procedurally

reasonable because the district court properly calculated the advisory guideline

range, considered the relevant § 3553(a) factors, considered Hernandez-Pena’s

arguments for a below-guideline sentence, and articulated a reasoned basis for its

decision. Further, Hernandez-Pena failed to meet his burden of establishing that

his 46-month sentence at the low end of the guideline range is substantively

unreasonable. Accordingly, we affirm Hernandez-Pena’s sentence.

AFFIRMED.2